S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   10665
 
                           I N  A S S E M B L Y
 
                               May 10, 2018
                                ___________
 
 Introduced  by M. of A. MIKULIN -- read once and referred to the Commit-
   tee on Codes
 
 AN ACT to amend the penal law, in relation to increasing  penalties  for
   criminal  use  of a firearm in the first degree when committing a drug
   related felony offense
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:

   Section  1. Section 265.09 of the penal law, as amended by chapter 650
 of the laws of 1996 and subdivision 2 as amended by  chapter  1  of  the
 laws of 2013, is amended to read as follows:
 § 265.09 Criminal use of a firearm in the first degree.
   (1)  A  person  is  guilty  of  criminal use of a firearm in the first
 degree when he OR SHE commits any class  B  violent  felony  offense  as
 defined  in paragraph (a) of subdivision one of section 70.02 OR COMMITS
 ANY DRUG RELATED FELONY OFFENSE AS DEFINED IN SECTIONS  220.31,  220.34,
 220.39,  220.41, 220.43, 220.44 AND 220.48 OF THIS CHAPTER and he OR SHE
 either:
   (a) possesses a deadly weapon, if the weapon is a loaded  OR  UNLOADED
 weapon  from  which  a shot, readily capable of producing death or other
 serious injury may be discharged; or
   (b) displays what appears to be a pistol,  revolver,  rifle,  shotgun,
 machine gun or other firearm.
   Criminal use of a firearm in the first degree is a class B felony.
   (2)  Sentencing. (A) Notwithstanding any other provision of law to the
 contrary, when a person is convicted of criminal use of a firearm in the
 first degree as defined in subdivision one of this  section,  the  court
 shall  impose  an additional consecutive sentence of [five] TEN years to
 the sentence imposed on the underlying class B violent felony offense OR
 DRUG RELATED FELONY OFFENSE where the person  convicted  of  such  crime
 displays  a loaded OR UNLOADED weapon from which a shot, readily capable
 of producing death or other serious injury may be discharged OR DISPLAYS
 WHAT APPEARS TO BE A PISTOL, REVOLVER, SHOTGUN,  MACHINE  GUN  OR  OTHER
 FIREARM,  in  furtherance  of  the  commission of such crime[, provided,
 however, that such additional sentence  shall  not  be  imposed  if  the

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
              

                       [ ] is old law to be omitted.
                                                            LBD04664-01-7

 A. 10665                            2

 court, having regard to the nature and circumstances of the crime and to
 the  history  and  character  of the defendant, finds on the record that
 such additional consecutive sentence would be unduly harsh and that  not
 imposing  such  sentence  would be consistent with the public safety and
 would not deprecate the seriousness  of  the  crime].    THE  ADDITIONAL
 SENTENCE  SHALL  BE  IMPOSED  BY  THE COURT REGARDLESS OF THE NATURE AND
 CIRCUMSTANCES OF THE CRIME AND TO  THE  HISTORY  AND  CHARACTER  OF  THE
 DEFENDANT. THE DISTRICT ATTORNEY OF ANY JURISDICTION SHALL BE PROHIBITED
 FROM DISMISSING THIS OFFENSE IN THE COURSE OF A PLEA BARGAIN.
   (B)  Notwithstanding  any  other provision of law to the contrary, the
 aggregate of the [five] TEN year consecutive term  imposed  pursuant  to
 this  subdivision  and  the  minimum  term of the indeterminate sentence
 imposed on the underlying class B violent felony OR DRUG RELATED  FELONY
 OFFENSE shall constitute the new aggregate minimum term of imprisonment,
 and  a person subject to such term shall be required to serve the entire
 aggregate minimum term and shall not be eligible for release  on  parole
 or  conditional  release  during such term. This subdivision shall [not]
 apply where the defendant's criminal liability for displaying  a  loaded
 OR UNLOADED weapon from which a shot, readily capable of producing death
 or  other  serious injury may be discharged, OR DISPLAYS WHAT APPEARS TO
 BE A PISTOL, REVOLVER, RIFLE, SHOTGUN, MACHINE GUN OR OTHER FIREARM,  in
 furtherance of the commission of crime is based on the conduct of anoth-
 er pursuant to section 20.00 of this chapter.
   § 2. This act shall take effect on the one hundred eightieth day after
 it shall have become a law.